Karen Casey wins court case.
 

Just saw this on the ABC

Nurse successfully sues Pel-Air for psychological injuries after Norfolk Island plane crash - ABC News (Australian Broadcasting Corporation)

Good news in her long battle for recognition of the psychological injuries she received. :D

Simply put, the brain is part of the body and subject to trauma.


Thus the "convention" is wrong. But will the "convention" see this as a precedent and amend it?


Congratulations are certainly in order, but why should she be left to fight further battles on behalf of everybody subject to the signatory's intent? She's suffered enough.

I still can't understand why Karen Casey was legally a passenger on the flight? A cabin attendant is crew,a paramedic in a wheeled ambulance is staff, a paramedic in a helicopter is crew. I have seen cargo masters and horse handlers on a crew declaration, so why is an on duty flight nurse on a Westwind, a passenger? If Karen was legally a passenger under current law,then the law needs sorting out urgently.

I also don't understand the reference to the Montreal Convention and Domestic changes in 2012? The aircraft was coming from an international ,non Australian departure point and everyone on board would have to make a Customs declaration.It certainly wasn't Domestic as far as Customs is concerned.

Wunwing

Basically if the person on the flight is employed by the operator of the aircraft. "Ie" airline pilots flight attendants an engineering person doing inflight testing employed by that airline are crew. Pelair pilots are crew. The nurse doctors are not as they are employed by some one else.
Crew on a helicopter doing surveys say on power lines is pilot only. The rest are not crew as they are not employed by the operators of the aircraft.

Not necessarily.I've carried horse handlers and cargo masters who were employed by the consigner and they were on the General Declaration as crew.Also there are a lot of contract cabin crew who dont work for the airline/operator.Qantas is or was one such operator

That was International and it may be different to Domestic but as I said, I still cant see why a flight from a non Australian port of origin to an Australian port is domestic?

Wunwing

Well Done!
 

Agreed. She didn't buy a ticket. She shouldn't be deemed a passenger. Complete BS...the law needs to be changed.

Well done Karen Casey!

Good on you for having the mental tenacity and physical endurance to pursue the justice you were owed.

PG

What is the definition of "passenger" for the purposes of the Carrier's Liability legislation? Is it the same as in the civil aviation regulations?

Good luck in working these questions out - the interconnecting definitions, particularly in the civil aviation regulations, now create a wonderful spaghetti-like mess. (I think the amendments to the civil aviation regulations may have to do with the machinations to ensure heavy metal operators could cut down on the number of cabin staff by having passengers perform duties in exit rows - smelt a lot like a person with duties in relation to the safety of the aircraft ... .)

In any event, it may be that some contractual arrangement meant that Pel-Air's liability to medical crew on board was limited by the same limitations as apply to liability to passengers.

All will be revealed when the judgment is published.

Folks,
As Creamie says, all will be revealed when the judgement is published.

However, a central point is that the flight was, per CAR 206, aerial work, not "charter" or "RPT", that was a major issue, and has since resulted in rule changes that most EMS flights will be "air transport" or some such definition.

Tootle pip!!

The judgement appears to be in the public domain. You can search for it at the following link
Judgments - Supreme Court New South Wales

I presume it can be published here, and the media have quoted some extracts. . However there is a legal disclaimer at the bottom, so it might be better for interested people to search for it themselves.


It reads to me that the judge found that PTSD is compensable if it is a consequence of a physical injury to the body or brain. Pure PTSD per se may not be compensable, as per the intent of the Montreal Convention. So I’m not sure this is the landmark case that some are suggesting - it may be this was a fairy unusual case which permitted some specific findings.

Anyway, congratulations Karen.

The judgment is published here: https://www.caselaw.nsw.gov.au/decis...b06e6e9f0f55e0

The parties agreed a number of issues, one of which was Ms Casey and Dr Helm were passengers on NGA. Why the parties decided not to agitate that issue is not explained:The ratio of the decision is that PSTD is compensable "bodily injury" for the purpose of the Montreal Convention and section 9E of the Civil Aviation (Carriers Liability) Act.

Regarding pax vs crew. In a past life doing aeromed, we had medical crew who only joined us on occasion when required.

They were regarded as passengers and not crew (therefore not able to open doors etc. nor trained how to do it, only briefed as you would a normal passenger for emergencies), mainly for the reason that because that particular organisation went through so many crew and they were so transient in the bases they were at, it was impossible to be able to train them all and keep track of their CAO 20.11.

Fulltime rescue crews that are consistently with one organisation, I would expect them to be fully trained in compliance with CAO 20.11. However in the instance that I described above, and also the Pel-Air/Careflight situation, I can understand why they aren't.

morno

If you classified the flights as "AWK" then you cannot have "passengers" on board.

Only crew can be carried on board an "AWK" flight.

Yes I'm still unclear if the flight was conducted (or was required to be conducted) under Airwork or Charter.

This is of relevance regarding carriage of alternate fuel.

Does this judgement suppoet the contention that it was in fact charter - as implied in the slightly ambiguous CASA audit. This stated (with words to the effect) the AOC covered medevac charter operations.

On any interpretation of any of the recent versions of the civil aviation regulations, patients on board an aircraft are passengers.

Just as CASA invented ChaRPTer, CASA invented ChAWK.

This is one of the many running sores in the classification of operations scheme that will be fixed in 1998. :ok:

601,
Well aware of the regulations regarding AWK and Charter with regards to "pax". However I can tell you now, that while not technically "pax", any "crew" that were essential for the conduct of the flight (let's think Doctors not associated with the company conducting the flight, paramedics, police officers, neonatal staff, escorts of the patients), were not CAO 20.11 trained so therefore were not considered, as far as the actual company crew were concerned, as "crew".

morno

I haven't read the transcript, but relying on Creampuff's quote re: Issues: my reading of that however, is that the 'parties' agreed on a course of action which the Court has allowed - however did the Court RULE on any of the disputed matters?

If not, and they just upheld the agreement/ resolution, then such can hardly be held as a precedent in future claims?

Bit like the difference between CASA Approving VS Accepting an Ops manual etc. Nit picking, but that's the way the law works isn't it?

I still maintain that as the medical / travel insurance company who wanted the patient repatriated called Careflight as the medical company, not Pel-Air; and Careflight contractyed Pel-Air to provide the aircraft and crew to Careflight, then it was a Charter, not Airwork.

For Pel-Air to qualify as an airwork provider the original requesting agency would have had to contact Pel-Air, not Careflight.

Aerial Work or Charter
 

It seems pretty murky, and there are a number of issues.

1. The CASA regulations at the time
Some people here have stated that carrying a "passenger" is not possible under Aerial Work - that is, the presence of a passenger means the flight must operate as Charter (or RPT).

CASA's NPRM 1003OS July 2010 appears to contradict this view. Section 3 (page 7) makes it clear that passengers can be carried on aerial work flights.
http://www.casa.gov.au/wcmswr/_asset...nprm1003os.pdf

3. Synopsis of Change Proposals
3.1 Purpose of this NPRM
Carriage of Fuel on Flights to a Remote Island – CAO 82.0
3.1.1 The purpose of this NPRM is to consult on a proposed change to CAO 82.0 relating to the carriage of fuel for flights to remote islands. A ‘remote island’ is currently defined as Lord Howe Island; Norfolk Island; or Christmas Island.
3.1.2 Presently, CAO 82.0, subsection 3A requires all passenger-carrying charter flights in aeroplanes to a remote island to carry enough fuel for flight from the remote island to an alternate aerodrome, unless an operator’s operations manual states otherwise. There are no similar provisions for passenger-carrying aerial work, regular public transport (RPT), private or cargo-only charter flights.
3.1.3 The NPRM proposes an amendment to the Order which will require the carriage of enough fuel for flight from a remote island to an alternate aerodrome for all passenger-carrying aerial work, charter and RPT flights in aeroplanes, unless CASA approves othewise.

So at the time of writing (6 months after the crash), CASA implicitly stated passengers could be carried on Aerial Work flights.


2. The 2008 CASA audit describes PelAir's AOC on page 2.
http://www.casa.gov.au/wcmswr/_asset...ef12-10004.pdf
To me, this is written a bit loosely. However it seems to suggest that the medivac work was charter. This section continues "AirWork operations consist of target towing for the RAN."
So the last CASA audit prior to the crash seems to suggest air ambulance flights were Charter.

3. The 2009 CASA special audit stated the PelAir line pilots were not sure whether they were operating as Aerial Work or Charter!

4. The CASA email dated 14 April 2010 suggests CASA was not sure what category PelAir's air ambulance flights operated under. Specifically, this email states CASA can not find any reference one way or another, and further that CASA was not aware of any change from Charter to AirWork in respect of air ambulance functions.
This all reads a bit odd, but seems to suggest CASA expected air ambulance flights were Charter (as described in the 2008 audit).
What was going on within CASA at this time? Was someone asking questions why the flight was being considered AirWork?

5. Separate to all these regulations, did the contract between Careflight and PelAir specify a category the flight was to operate under? There may be a distinction between the contractual act of hiring an aircraft (charter), and the Charter category of operation (as defined by CASA). Thus a farmer could contract someone to spray his property for weeds. The farmer could say he was chartering a plane and pilot. But the flights would be Aerial Work.

I agree Allan L: The only 'precedent' this case sets is the finding that PSTD is compensable "bodily injury" for the purpose of the Montreal Convention and section 9E of the Civil Aviation (Carriers Liability) Act (in this case, Commonwealth).

As another example of the distinction between the Court just accepting things as being agreed between the parties versus things being found by the Court, the passage from the judgment I quoted also says:That's not the same as a finding that the pilot and co-pilot were negligent. As far as I am aware, there have been no procedings to which the pilot or co-pilot were parties in which they have admitted negligence or been found negligent. (There could be proceedings with this outcome, but I'm not aware of them.)

As to the crew/passenger distinction, my only points were: First, whatever the regulatory definitions and contortions muddying the question whether medical people 'working' on board an aircraft were or are members of the crew rather than passengers, the patients being carried on board have always been "passengers" under the civil aviation law. Full stop. Secondly, the current spaghetti of intersecting and interacting definitions don't help much in clarifying the regulatory 'status' of people who aren't licensed aircrew but still have 'jobs' to do on board the aircraft.

PelAir conceded liability. Given they were always going to be found liable, there was no downside and several advantages to admitting liability:
1. It prevented all the regulatory deficiencies being debated in court, and hence protected the PelAir / Rex brand
2. PelAir conceded "the crash had been caused by the negligence of the pilot and co-pilot, for which it had vicarious liability." This kept the spotlight off all the deficiencies of PelAir itself - and also CASA! From the outset, the position of both organisations has been that the pilot was almost solely responsible for the crash.
3. There may have been a thought that by admitting liability for the crash, the contested issue (PTSD) would go better for them.

As an entertained witness to the nearly 3 decades of the "Categorisation of Operations" by the regulator in its various (dis)guises let me add my simplistic (read non-legal) view.

Pilot and Co-Pilot were employed, paid and managed by Pel-Air. They are required to operate an aircraft and are "crew".

Care-flight was tasked by ?? to medivac a patient. Care-flight provided the medical staff (Doctor/Nurse) employed, paid and managed by Care-flight to travel in the aircraft and provide care for the patient en-route. Patient family member also accompanied patient.

Care-flight hire Pel-Air to provide an aircraft and crew (Pilot/Co-Pilot) to conduct the given task.

None of the Care-flight contingent are required to operate the aircraft, they are however required to operate any medical equipment they have brought with them onto the aircraft.

As I see it, Pilot and Co-pilot are the only "crew", the rest can only be 'passengers'. How the hirer of the aircraft utilises that aircraft/crew is irrelevant to the flight categorisation (in a regulatory sense)

I see the flight categorisation as "Charter" and airwork doesn't even come into it.

Am I wrong?

Tipsy

Depends on what the term “ambulance functions” means in CAR 206(1)(a)(vii).

Although the discussion is academic, because the new, simple, harmonised, outcomes-based classification of operations scheme will come into effect in 1998, it does raise the question as to how operations for the purposes of “ambulance functions” and “any other purpose that is substantially similar to” ambulance functions can be carried out without passengers. Operations for those purposes are aerial work: CAR 206(1)(a)(vii) and (ix).

If “ambulance functions” involve patients, and patients are, by definition, passengers, it follows that at least that kind of AWK can, from a regulatory perspective, be carried out with passengers.

Doesn’t mean it has to be done only under an AWK AOC, but I don’t see why it can’t be done under an AWK AOC.

Of course, it may be that the transport of patients in other than an emergency is not an operation for the purposes of “ambulance functions” or “any other purpose that is substantially similar to” ambulance functions.

But as I say, it’s all academic come 1998.

Creamie,

When will it be 1998 ?

Are we there yet dad?

:}

Creamie

I can accept that pure "ambulance functions" are airwork. That is the operations of dedicated aircraft converted to primarily "ambulance function" such as those aircraft owned, operated and crewed by the the likes of the RFDS. They are air ambulances first and foremost. There are others of course around the country.

I find it difficult though to accept that an aircraft and operating crew hired from a supplier and it matters nought what the hirer wants to do with the aircraft (within the operating limits of the aircraft/crew) can be anything else but charter. It could be a sit down have a champers or 2 passenger flight or it could be to transfer a sick passenger (sitting up or lying down does not matter) and attendants between A and B. I do not think that is airwork (or ambulance function), charter yes.

I see a definite difference between a dedicated "air ambulance' operation and one where an aircraft is used to move passengers including a sick or injured one.

Perhaps I am as confused as the regulator as they try to cover every possible scenario or circumstance with a regulation (and attendant "penalty points").

Roll on 1998, it can't come soon enough.

Tipsy.

Let’s leave the classification of the operation question aside (BTW: I agree that the operation in which NGA was engaged was charter, and it appears that the parties to the litigation - including, presumably, the insurers - agreed) and focus on the distinction between POB who are crew and those who are not.

The spaghetti starts in the Dictionary in the 1998 regulations. A “passenger” is defined as a person who, among other characteristics, is not “a member of the crew of the aircraft”. The Dictionary doesn’t define “crew” or “member of the crew” or “crew member”, but it does define “cabin crew member”.

The term “cabin crew member” is defined in the Dictionary in the 1998 regulations to mean a “crew member, other than a flight crew member, who performs, in the interests of the safety of the aircraft’s passengers, duties assigned by the operator or the pilot in command of the aircraft”.

The Dictionary in the 1998 regulations doesn’t define “flight crew member”.

However, the 1988 regulations define “crew member” and “flight crew member”.

The 1988 regulations define “crew member” to mean “a person assigned by an operator for duty on an aircraft during flight time and any reference to ‘crew’ has a corresponding meaning.”

The 1988 regulations define “flight crew member” to mean “a licensed crew member charged with duties essential to the operation of an aircraft during flight time, and any reference to ‘flight crew’ has a corresponding meaning.”

So it seems that, on the current definitions, the question whether a person other than “a licensed crew member” i.e. someone with a licence and “charged with duties essential to the operation of an aircraft during flight time” - is a passenger, depends on whether the person has nonetheless been “assigned by [the] operator for duty on [the] aircraft during flight time”. It seems there’s a difference between non-licensed crew who are ‘just crew’, and non-licensed crew who are “cabin crew”: the latter perform, in the interests of safety of the aircraft’s passengers, duties assigned by the operator or PIC of the aircraft, whereas non-licensed ‘just crew’ are apparently assigned by the operator for ‘other’ duties.

Meanwhile, the 1988 regulations still have a definition of “operating crew”, which means any “person who: (a) is on board an aircraft with the consent of the operator of the aircraft; and (b) has duties in relation to the flying or safety of the aircraft.” Before the definition of “passenger” was repealed in the 1988 regulations, a passenger used to be defined as every POB other than “operating crew”. However, the term “operating crew” is still used in and has some important consequences in the 1988 regulations.

Clear so far?

The characterisation of someone as a passenger now all now seems to boil down to the question whether or not the person has been “assigned by an operator for duty on an aircraft during flight time”. In other words, even if someone is e.g. performing duties in the interests of the safety of the aircraft’s passengers, the person will still be a passenger if the operator of the aircraft did not assign that person to duty on the aircraft.

Hence, on the current definitions it would appear doctors and nurses tending to patients on ‘medivac flights’ are passengers, unless they were assigned to that duty by the operator of the aircraft.

I don’t know whether I can take much more of this simplification. :ugh:

Creamie,
quite a few years ago we had a job to pick up a baby seal.
All was well until half way back the damn thing got out of the sack it was held in, started biting the ankles of anyone who went near it and finished up sitting on a back seat looking out the window. Now the flight started as freight, therefore airwork, given the freight was now sitting on a back seat looking out the window, should we have upgraded to Charter?:}

Folks,
One could almost come to the conclusion that, under certain circumstances, cabin crew are passengers, something I have long suspected, especially after the sun has gone down.
Tootle pip!!

Creampuff.
I follow your argument but where does this leave pax who are assigned an overwing exit? Are they "assigned a duty by the operator"?

Wunwing

Glad you followed it. I didn’t!

I don’t know whether the process of filtering persons for age, physical capacity, sobriety, comprehension of instructions and letting them ‘opt out’ turns persons, who are expected to operate emergency exits on command from the PIC, into persons “assigned by [the] operator for duty on [the] aircraft”. Maybe they’re just volunteering to help out …

What would happen if all people with tickets to fly on an aircraft opted out of volunteering to help out in an exit row? Would the operator be obliged to leave the exit rows empty? Would the operator be obliged to “assign” more people for “duty on the aircraft” to operate the emergency exits?

Creampuff.
What I followed was the complexity of what you wrote. I certainly don't claim to have an answer from what you wrote.

As far as to what happens if no one "volunteers" for the overwing exits, I expect either the operator would have to find crew for the positions or pax numbers would have to be reduced to a number specified for the front and rear doors only. I have never seen that figure, as all MEL/DDGs that I have operated under assume only one exit blocked out and a comensurate reduced pax number to meet the 90 second evacuaton ruleThat is why I query if in reality the pax are assigned a duty. If they weren't there the flight goes no where.

Another one to consider. If a test engineer is assigned a duty on a pax aircraft and is operating onboard approved testing systems are they crew or pax?

Wunwing

seems like a lot of guess work going on here. check this out for how a court found on a similar passenger vs crew matter:


When does the Civil Aviation (Carriers? Liability) Act 1967 (NSW) apply? - Carter Newell
http://www.cgw.com.au/publication/ai...lity-update-2/ - see "who is a passenger"


Was Edwards a passenger?
Absent a definition of 'passenger´ in the CACLA, the Court took guidance from leading international and local cases5 and applied the principles laid down in those cases to the facts of this matter.
In finding Edwards to have been 'an essential part of the crew', and therefore not a passenger for the purpose of the CACLA, the Court looked to the contract for aerial services as between Precision and Endeavour noting the following critical features:

• Two Endeavour employees were supplied to Precision as an 'inspector' and 'observer';
• The observer was to 'assist the pilot by providing advance warning of approaching hazards, tracking flight developments to determine changing risks and recording the condition of the powerline';6 and
• At the time of the accident, and in accordance with the contract, Edwards fulfilled the role of observer.

The Court found Edwards' role as observer was central to the pilot's conduct of the aerial inspections of the overhead lines and the pilot had relied on Edwards to assist with the navigation of the aircraft as well as to provide advance warning of hazards.

Given the above, I would assume the nurse would be accepted as a passenger as she was not critical for the flight operation, nor did she affect the navigation or control of the aircraft.

There isn't a definition of "passenger" in the carriers liability legislation, but there is in the civil aviation regulations.

The fact that there is uncertainty about these questions within and between the different pieces of legislation, notwithstanding decades of "simplification" and thousands of pages of new regulations and other rules, is the problem.

It's still "guess work".

I'll demonstrate: What if all the patients are mentally unstable and the nurse's job is to keep them under control so they don't try to take control of the aircraft or open the emergency exits? Sounds to me like a function that's essential to the safety of the aircraft, whether the nurse has been "assigned for duty" by the operator or someone else.

I don't know the answer. But that's the point.